Articles
22 and 29, Rules 54, 70, 75, 79 and 89 - protection of information given
in testimony before the Tribunal.

The Trial Chambers power
to ensure witness protection, pursuant to Article 22 and Rules 54, 75
and 79, extends to the protection of information in the possession of
a witness where disclosure thereof, or disclosure of its source, might
have serious repercussions for the safety of the witness or a third party.
This is without prejudice to Sub-rule 89(D), according to which evidence
may be excluded if its probative value is substantially outweighed by
the need to ensure a fair trial.

On 25 March 1999,
Trial Chamber I ordered General Philippe Morillon, UNPROFOR Commander in Bosnia
and Herzegovina at the times of the events mentioned in the indictment, to appear
before it as a witness. General Morillon is to testify on matters he learned
during his mission which are related to the acts allegedly committed by the
accused.

In an Application dated 15 April
1999 (hereinafter "the Application"), the witness requested that the
Trial Chamber grant him six protective measures after arguing that not only
might his testimony put his own safety and that of other French civilian and
military personnel in the former Yugoslavia at risk but also that certain information
disclosed might run contrary to the "essential security interests"
of France. The Application was based on French legislation and Tribunal jurisprudence,
in particular, the Appeals Chambers Judgement on the Request of the
Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July
1997 of 29 October 1997 in the Blaskic case.

In correspondence dated 10 May
1999 (hereinafter "the Correspondence"), the Legal Counsel of the
United Nations informed the Trial Chamber that the Secretary-General had lifted
the witness immunity from jurisdiction to testify, subject to protective
measures identical, or very similar, to those requested in the Application.

The
Decision

In view of the information set
out in the Application and the Correspondence, the Trial Chamber deemed that
the witness testimony might endanger the safety of military and civilian
personnel and make it difficult for the UN and France to carry out military
and humanitarian action in the former Yugoslavia.

The Trial Chamber, however, considered
that, pursuant to Article 29 of the Statute, States are bound to co-operate
with the Tribunal and that only the Judges may set down limits thereto. In this
respect, according to the Appeals Chambers Judgement, a Judge may
exceptionally allow limited disclosure of documents ordered if a State acts
in good faith and satisfies the Judge that its national security is at risk
and that the documents have no real importance for the case. The Trial Chamber
made it clear however that, in the present case, except for those the witness
might consider appropriate, it has not ordered the production of documents.
Moreover, the UN Secretary-Generals authorisation to testify does not
automatically include authorisation to disclose documents.

The Trial Chamber also held that
neither the witness nor any authority to which he answered at the relevant time
could invoke Rule 70 of the Rules of Procedure and Evidence. That provision,
which deals inter alia with the protection of information confidentially
provided to the Prosecutor and used solely in order to generate new evidence,
is not applicable because its requirements have not been met in this case. The
Trial Chamber decided, however, that the witness should not be asked about the
sources of his information insofar as they directly affect the safety of UN
peace-keeping forces or the State of which the witness is a national. It stated
that those sources do not fall within the scope of the topics about which he
is to testify.

However, on its own motion and
pursuant to Article 22 and Rules 54, 75 and 79, the Trial Chamber granted the
Application and ordered that the witness testify in closed session. It further
stated a number of topics that should be covered. The Trial Chamber also outlined
the procedure to be followed during the testimony, namely, that the witness
must first make a spontaneous statement during which he may rely on notes but
not on a prepared statement and that the questions by the parties should fall
within the scope his initial statement.

The witness was authorised to indicate
to the Trial Chamber if any of the requested information is confidential. The
Trial Chamber also authorised representatives of the UN Secretary-General and
the French Government to be present during the testimony and to present, if
necessary ex parte, any reasoned request which in their view is necessary
"for the protection of the higher interests they have been assigned to
protect." Finally, the Trial Chamber ordered the parties not to disclose
to any third parties any part of the witness statement and that the hearing
transcripts of that statement shall not be subject to any disclosure.